Traditionally leases in Victoria have not been registered because of the protection afforded by s. 42(2)(e) of the Transfer of Land Act 1958 which provides that :
“….land which is included in any folio of the Register or registered instrument shall be subject to –
…..
(e) the interests of (but excluding any option to purchase) of a tenant in possession of the land;”
Because of s.42(2)(e) any purchaser of the relevant land was bound by the lease. The reference to “tenant in possession” means a person in actual possession of the land. See: Burke v Dawes (1937-38) 59 CLR 1 at 17-18; Balanced Securities Ltd v Bianco [2010] VSC 162 at [79].
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#1 by David McKenzie on July 21, 2011 - 2:47 pm
Certainly the cases above support the proposition that if your are in occupation (with a valid lease) that you are a tenant in possession. However they are silent as to the proposition that you need to be in occupation, rather than have the right to occupy under a valid lease, to be a tenant in possession.